Statelessness + Citizenship
Overview
Trop v Dulles (1958): those without an effective citizenship or nationality are the most vulnerable to human rights violations
currently there are about 10 million people who do not have a nationality
mainly in south east asia, central asia, eastern europe, middle east, and some parts of africa
1951 convention relating to the status of refugees: drafted in order to outline and protect the rights of “a person who is not recognized as a s=national by any state under the operation of its law
1954 convention relating to the status of stateless persons: same as the 1951 except it excludes people getting help from the UN
also recognizes a stateless persons right to education, housing, courts, employment, and public relief
major different in the two is in Article 31- requires the expulsion of stateless persons if they are in a state unlawfully, the issue is someone who has no state also has no papers or identity and therefore can not get anywhere legally
Acquisition of Nationality
nationality can be acquired in one of three ways
by birth on a state’s territory (jus soli)
by descent from a states national (jus sanguinis)
by a naturalization process
De Jure v. De Facto Statelessness
as defined in the 1954 convention, it only describes the situation of de jure stateless (stateless by law), which means every regulation/procedure/article under this convention only applies to de jure stateless persons
de facto stateless generally means “a person unable to demonstrate that they are de jure stateless, yet they have no effective nationality and do not have national protection”
under this, de facto stateless people technically have a nationality but for whatever reason do not enjoy the rights as the people a part of that state
de facto largely takes after the issue of what “effective nationality” means and it was ultimately decided that a de facto stateless person refers to persons “outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country”
“unable or…unwilling” means people who are under persecution or severe threat of persecution
this means all refugees are considered de facto stateless persons, but not all DFSP are refugees
Causes of Statelessness
state succession
the fall of the soviet union, yugoslav federation, and the post colonial state formations in africa and asia all contributed to stateless persons (because thier “state” did not exist anymore)
ex. estonia regained its independence in 1991 but only extended citizenship to people who had been part of estonia prior to the soviet occupation or the descendants of those people
article 10(1) of the 1961 statelessness convention requires any treaty between states concerning the transfer of territory to have specific regulations/protocols to address the nationality of the citizens residing in that territory
a new age issue with this is “sinking states,” which are states that are at risk of no longer existing because of climate change (ie. literally sinking into the ocean)
Conflict of Laws and Administrative Practices
a difference of “de somethings” between states can cause it
ex. if someone is born in a state that exercises jus sanguinis (your parents lineage) but the persons parents were born in a state that exercises jus soli (you were born in that state) then that person is shit out of luck
Discrimination Against Minority Groups
sometimes people are just plain discriminated against and stripped or refused citizenship
ex. Many Jordanians who had palestinian origin were stripped of their Jordan citizenship bc they were palestinian (2004→2008), Israel has restrictions on which palestinians can get israeli citizenship (Palestinian spouses of israelis arent allowed israeli residency or nationality), etc etc
Gender-Based Discrimination
in many states that apply jus sanguinis, only men are actually able to pass their nationality on, not women
Consequences of Statelessness
stateless persons do not have the resources to exercise many things considered “human rights”
often times no marriage, employment, education, healthcare, freedom of movement
statelessness causes poverty within stateless populations
Enforcement
Enforcement at the International Level
United Nations High Commissioner for Refugees’ has a duty to protect stateless persons and refugees
in 2011, they held a campaign to get more states to take on protection of SP’s and as a result, 17 countries acceded to the 1954 Statelessness Convention or the 1951 Statelessness Convention
Enforcement at the National Level
because the conventions did not provide rules for actually identifying stateless persons within a state, not many states ratified the convention
and, since many SP’s are not under (threat) of persecution they do not qualify as refugees, but sicne they can not be identified as SP’s, they are stuck in limbo with no protection
Selected Caselaw
Access to Nationality
the european convention on human rights does not adress the “right to a naitonality” but does recognize that being stateless can infringe upon an individuals right to respoect their private/family life as given under article 8 of the european convention
the african cahrter on the rights and welfare of the child doe recognize the right to a nationality
Detention and Removal of Stateless Persons
in the High Court of Australia in Al-Kateb v. Godwin, it was ruled that the indefinite detention of an unlawful non-citizen subject to removal from Australia is permitted under the Migration Act
in the Supreme Court of US in Zadvydas v. Davis it was ruled that in order to hold a non-citizen in detention pending removal beyond six months, the US must show
Ireland
1922 ireland had jus soli and jus sanguinis to allow ethnic irish/irish born people to return to/immigrate to Ireland so they can build a culture
more present day, 79% of irishmen voted to revoke jus soli, but more recently people are wanting to bring it back
Pakistan
citizenship applies to everyone born within the borders of the country (jus soli) by the Pakistan Citizenship Act of 1951
they also allow acquired citizenship through descent and legal immigration
Pakistan is currently experiencing mass deportations of people who are of Afghan descent
Dominican Republic
they banned birthright citizenship and ruled that if anyone was born after 1929 without a parent of dominican descent and is there illegally, they are denaturalized
citizenship now goes to only those who can prove they have at least one parent with dominican descent